Citation NR: 9726168
Decision Date: 07/29/97 Archive Date: 08/06/97
DOCKET NO. 95-20 757A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to service connection for residuals of shell
fragment wounds.
2. Entitlement to service connection for an acquired
psychiatric disorder, to include post-traumatic stress
disorder (PTSD).
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. A. Willett, Associate Counsel
INTRODUCTION
The veteran had active service from February 1970 to
September 1971, and from October 1990 to June 1991, with
interim reserve duty.
This appeal arises from a May 1995 rating decision issued by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Detroit, Michigan.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran claims that he acquired a psychiatric disorder
secondary to his wartime experience in Vietnam or the Persian
Gulf. He also alleges residual disabilities from shell
fragment wounds incurred in Vietnam.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that his claims for
entitlement to service connection for residuals of shell
fragment wounds or an acquired psychiatric disorder, to
include PTSD, are well-grounded.
FINDINGS OF FACT
1. The claim for entitlement to service connection for
residuals of shell fragment wounds is not plausible.
2. The claim for entitlement to service connection for an
acquired psychiatric disorder, to include PTSD, is not
plausible.
CONCLUSION OF LAW
The veteran’s claims for entitlement to service connection
for residuals of shell fragment wounds and entitlement to
service connection for an acquired psychiatric disorder, to
include PTSD, are not well-grounded. 38 U.S.C.A. §§ 1110,
1154(b), 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.304
(1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service connection may be granted for disability resulting
from disease or injury incurred in, or aggravated by, the
veteran’s active service. 38 U.S.C.A. § 1110; 38 C.F.R.
§§ 3.303, 3.304. The first step in the Board’s analysis is
to determine whether the veteran has presented a well-
grounded claim for service connection under 38 U.S.C.A.
§ 5107(a). A well grounded claim is generally established by
competent evidence of the following elements: (1) a current
disability established by a medical diagnosis; (2) incurrence
or aggravation of a disease or injury in service (lay or
medical evidence), and; (3) a nexus between the in-service
injury or disease and the current disability (medical
evidence). Caluza v. Brown, 7 Vet.App. 498 (1995). Where
the determinative issue involves medical etiology, competent
medical evidence that the claim is plausible is required in
order for the claim to be well-grounded. Grottveit v. Brown,
5 Vet.App. 91, 93 (1993).
In addition, where entitlement to service connection for PTSD
is requested, the veteran must submit medical evidence
establishing a clear diagnosis of the condition, credible
supporting evidence that the claimed in-service stressor
actually occurred, and a link, established by medical
evidence, between current symptomatology and the claimed in-
service stressor. 38 C.F.R. § 3.304(f); See also, Cohen v.
Brown, 10 Vet.App. 128, 146 (1997). If the claimed stressor
is related to combat, service department evidence that the
veteran engaged in combat or was awarded the Purple Heart,
Combat Infantryman’s Badge, or similar combat citation will
be accepted (in the absence of evidence to the contrary), as
conclusive evidence of the claimed in-service stressor. Id.;
Collette v. Brown, 82 F.3d 389, 393 (Fed.Cir.1996).
Briefly, a review of the veteran’s available service medical
records does not show treatment for shell fragment wounds or
for an acquired psychiatric disorder, either during his
service in Vietnam or in the Persian Gulf war. In his
personal hearing testimony given in July 1995, the veteran
stated that he was attacked on a mission in Vietnam. He
testified that he received multiple shrapnel wounds in the
back, the arm, and the lip. According to the veteran, he had
the last piece of shrapnel taken out in 1973 at the
outpatient clinic in Grand Rapids, Michigan.
The veteran’s private outpatient records from Keith Marcus,
MD, show that he was treated for a nodular lesion on his
right lower lip (approximately one-half millimeter in length)
in June 1993. Clinical data suggested no malignancy. No
history of trauma to the area (i.e. shell fragment wound) was
reported at that time. The remainder of the veteran’s
private medical records do not show treatment for, or the
presence of, current residuals of shell fragment wounds to
the back or arms.
The veteran was afforded a complete general medical
examination in March 1995. That report indicated that the
veteran had four primary medical complaints at the time of
the examination, specifically: shortness of breath with any
kind of activity; kidney stones; severe upper
gastrointestinal distress; and cancer on his nose. The
veteran indicated that these medical problems began either in
Saudi Arabia during the Persian Gulf war or soon after his
return in May 1991. No history of shell fragment wounds were
reported and no current residuals were found on examination.
In his VA examination for mental disorders given February
1995, the veteran gave a history of being wounded by shrapnel
in Vietnam. However, no residuals of those wounds were
reported by the veteran. After his separation from his first
period of active service in September 1971, the veteran
worked briefly as a salesman. Thereafter, he reported
continued employment as a supervisor in a paint factory for
approximately 25 years. His chief complaints at the time of
the examination involved his stressful experiences in the
Persian Gulf and his recent divorce. The veteran stated that
since he returned from the Persian Gulf, he has been
irritable, angry, and introverted. He also indicated that he
was not sleeping well. However, specific nightmares or
flashbacks were not indicated. The veteran stated that he
had been treated at the VA Medical Center in Grand Rapids,
Michigan on an outpatient basis and was prescribed
antidepressant medications which he later discontinued.
The examiner described the veteran as quiet and cooperative
upon examination. The veteran appeared to be depressed;
however, no homicidal or suicidal ideation was indicated.
The veteran reported no visual or aural hallucinations. He
reportedly did not feel hopeless or worthless, but he was
paranoid sometimes. Axis I diagnosis was listed as
generalized anxiety with depression; mostly depression,
dysthymia reaction.
The veteran’s VA outpatient records from the Mental Health
Clinic (MHC) in Battle Creek, dated February through July
1994, were also submitted. Those records show that the
veteran underwent a complete neuropsychological evaluation in
March 1994. Findings associated with the battery of clinical
tests given the veteran suggested a possibility of the
presence of PTSD; however, emotional factors were not
considered to fully account for the veteran’s
neuropsychological deficits. Follow-up treatment records at
the MHC showed a diagnosis of dysthymic disorder. The
veteran reported occasional depression and outbursts of anger
for the past two years. Psychological manifestations
subsequent to his separation from service in Vietnam were not
indicated.
The veteran had a VA examination for scars in November 1995.
At the time, the veteran’s complaints focused on a “cancer”
on his nose which manifested during his service in the
Persian Gulf in 1990-1991. Objectively, a keratotic papule
was noted on his left forehead and some macular
hyperpigmentation on the left side of the nose was indicated.
No other scars or residuals were found on examination.
Finally, the veteran was afforded a VA examination for PTSD
in January 1997. The veteran reported infrequent nightmares,
which he cannot remember but which wake him up with “sweats”.
The veteran denied having flashbacks or stimuli which trigger
recall from his experiences in Vietnam or the Persian Gulf.
He also denied startled response or hypervigilance. The
veteran indicated that he was somewhat sad and feels tired
all the time. He feels that he has become introverted and
has lost interest in life. The veteran reported that these
symptoms have been present for five years now. He attributed
these problems to the loss of his job in November 1995. The
veteran reportedly has not maintained steady employment since
that time. Axis I diagnosis was dysthymic disorder.
The medical evidence of record does not show that the veteran
currently has any residual disability as a result of shell
fragment wounds incurred in Vietnam. A review of the
veteran’s DD Form 214 shows that he received numerous
citations for valor including the Combat Infantryman’s Badge.
Other evidence reflects that the veteran was awarded the
Purple Heart. While that evidence would tend to establish
the incurrence of a combat related injury, if consistent with
the circumstances and hardships of service under 38 U.S.C.A.
§ 1154(b), without evidence of a current residual disability
the veteran’s claim cannot be considered to be well-grounded.
A well-grounded claim requires more than a mere assertion;
the claimant must submit supporting evidence. Tirpak v.
Derwinski, 2 Vet.App. 609 (1992). While the veteran is
certainly capable of providing evidence of symptomatology, a
lay person is generally not capable of opining on matters
requiring medical knowledge, such as the degree of disability
produced by the symptoms or the condition causing the
symptoms. See Robinette v. Brown, 8 Vet.App. 69, 74 (1995);
Heuer v. Brown, 7 Vet.App. 379, 384 (1995); Espiritu v.
Derwinski, 2 Vet.App. 492, 494 (1992); see also Harvey v.
Brown, 6 Vet.App. 390, 393-94 (1994).
The veteran’s claim for entitlement to service connection for
an acquired psychiatric disorder, to include PTSD, is
similarly deficient. While the veteran has presented prima
facie evidence of current dysthymic disorder, he has not
presented any medical evidence or opinion establishing the
required etiological link between this condition and a period
of active service. Moreover, the veteran has not presented
any basis on which to adjudicate a claim for PTSD. He has no
current (or past) diagnosis of the disorder.
Without the required medical evidence establishing a current
disability and a nexus to the veteran’s active duty, the
Board is compelled to conclude that the veteran has not
presented well-grounded claims for service connection
pursuant to 38 U.S.C.A. § 5107(a). In the absence of a well-
grounded claim, the duty to assist the veteran is not
triggered, and the Board finds that VA has no further
obligation to the veteran at this time. Grivois v. Brown,
5 Vet.App. 136, 140 (1994).
In reaching this determination, the Board recognizes that
these issues are being disposed of in a manner that differs
from that used by the RO. The Board has, therefore,
considered whether the veteran has been given adequate notice
to respond, and if not, whether he has been prejudiced
thereby. Bernard v. Brown, 4 Vet.App. 384, 394 (1993).
However, the Board observes that the veteran has not
submitted adequate evidence that he currently manifests any
residuals of shell fragment wounds or that he has a current
psychiatric disorder attributable to active service. Thus,
because the outcome would be the same whether this claim was
treated as not well-grounded or adjudicated on the merits,
the Board concludes that the veteran has not been prejudiced
by this approach. See generally Edenfield v. Brown,
8 Vet.App. 384 (1995).
The Board views its discussion as sufficient to inform the
veteran of the elements necessary to present well-grounded
claims for entitlement to service connection for residuals of
shell fragment wounds or an acquired psychiatric disorder.
See Robinette v. Brown, 8 Vet.App. 69, at 77-78 (1995).
ORDER
Evidence of well grounded claims not having been submitted,
entitlement to service connection for residuals of shell
fragment wounds, and for an acquired psychiatric disorder, to
include PTSD, is denied.
MILO H. HAWLEY
Acting Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1997) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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